Lessons from the Evolution of Western Land Administration Systems

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Lisa Ting, Ian Williamson, Don Grant & John R. Parker:Lessons from the Evolution of Western Land Administration Systemsto convey land because of the lack of simple legal conveyancing methods and theinherent feudal tendency towards creating interests in land into perpetuity (Megarry& Wade, 1984:1169-1170). The lawyers discovered that by applying the Statute ofUses, they could transfer land and the legal obligations in a manner which traditionalmethods could not achieve. Later, between the late 17 th and early 19 th centuries, therule against perpetuities was developed by the English courts as a compromisebetween the landowners’ right to dispose of land at will (which arose after thedecline of feudalism) and the need to prevent land being removed from the marketindefinitely by way of will or grant. The Statute of Uses was eventually repealed bythe 1922-1925 legislative reforms that codified and simplified property legislation -culminating in the Law of Property Act 1925 (Simpson, 1976:3.15).A notable consequence of the Industrial Revolution was the growing realisation of aneed for some State regulation of land use by private owners. The lessons ontreatment of labour, the impact on the local community and the wider environmentare still issues today.The Industrial Revolution led into the capitalism vs socialism debate which hascontinued to this day with varying degrees of passion.Capitalism/SocialismLand Markets: The existence of land markets is one of the crucial identifyingfeatures of private ownership and capitalist society. In a little over one lifetime, theEastern Bloc has moved from private ownership to absolute State ownership andback again only to find that the Western nations have moved even further along thepath into privatisation. Unified Germany is one example (Raiser in Alexander &Skapska, 1994:3-18). Each of these changes has brought a need for matchingdevelopment of legal and administrative infrastructures.Torrens System: The Torrens System, which developed in Australia, is interestingbecause in a sense, it is an example of legal change responding to society’s needs,then propelling further changes in the land markets and land administration,including surveying methods. The Torrens System was revolutionary for its ability todeliver certainty as well as a cheaper and speedier land registration. The preexistingDeeds method required that lawyers trace the actual documents back as faras possible to determine whether there was good title to be passed on. Each transferinvolved the preparation of yet another detailed legal document. Whilst Torrens hadintended that the act of registration would grant title as though it had been granteddirectly by the Crown, the South Australian Real Property Acts of 1860 and 1861used a combination of provisions that made the certificate irrefutable evidence oftitle in the person registered (unless of course there was evidence of fraud, error,etc)(Harrison, 1962).The Torrens System has been adopted throughout Australia and in other parts of theworld with varying degrees of success. It should be remembered that the TorrensSystems was developed primarily as a response to 19 th century paradigms that weredriven by the imperatives of a newly-emerging nation-state with vast tracts ofunidentified land. Its value in our current and future society is certainly a matter forfurther research and deliberation (Parker, 1995).Proceedings of the International Conference on Land Tenure in the Developing World, Cape Town, 27 - 29 January 1998. p. 738
Lisa Ting, Ian Williamson, Don Grant & John R. Parker:Lessons from the Evolution of Western Land Administration SystemsSubdivisions legislation: In addition to certainty, people increasingly seekflexibility. Post WWII has seen the development of legislation that grew to meet thepeople’s expectations of their relationship to their land and buildings - in this case,higher density housing and subdivisions legislation.In Victoria, prior to the Subdivisions Act 1989, subdivisions were regulated by aseries of separate pieces of legislation. Each of those pieces of legislation reflecteda fresh change in community attitudes to their land and property.Initially, basic subdivisions could be carried out under the Local Government Act1958 but these were limited to simple vertical boundaries. In response to thedemand to own one’s own flat, company share schemes developed based on shareallocations. These were unwieldy and costly. Thus the Transfer of Land (StratumEstates) Act 1960 was created to allow separate ownership of flats as stratum butdid not overcome the problem of servicing the building as a whole. This latter issuewas resolved by the Strata Titles Act 1967 which allowed the establishment of asingle service company known as the „body corporate“. However, the Strata TitlesAct 1967 eventually proved too inflexible because people wished to plan beyond thephysical confines of the building. Thus the Cluster Titles Act 1974 came into force.The plethora of legislation was complex and clumsy. The Subdivision Act 1989 wasdesigned to incorporate all the previous legislation into a more effective and flexibleAct which regulated subdivision of land, buildings and airspace. It is expected thatover time this too, will require updating to meet fresh community needs.Similar issues have been faced in NSW, particularly in the high-density, high-valueareas of Sydney where there is increasing demand among communities of residentsto exert control over their surrounding environment in increasingly creative andvaried ways whilst still maintaining individual ownership rights over their owndwelling. Thus the NSW Community Plans legislation arrived which allowed moreflexibility to plan differing uses for various parts of common property to whichdifferent management strategies could apply.Whilst trends such as those shown by the evolution of the subdivisions legislationhave been driven by an economic imperative, namely the high cost of land; thetrends also reflect community concerns over the state of their surroundingenvironment, i.e. beyond the four walls of their own home. The growth incentralization of decisionmaking at municipal council level has seen acomplementary growth in mechanisms for citizen participation and objection(Raff,1996).Keynesianism/Privatization/EnvironmentalismAs with many western nations, Australia’s recent shift away from Post-World War IIKeynesian economic theory has been characterized by the privatization push thatplaces state-owned utilities and services as well as key related decision-making intothe hands of private owners. The fundamental belief is that laissez-faire will deliver.For example:Proceedings of the International Conference on Land Tenure in the Developing World, Cape Town, 27 - 29 January 1998. p. 739
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